New York State Court of Claims

New York State Court of Claims

CACCIATORE v. THE STATE OF NEW YORK, #2007-041-048, Claim No. 109721, Motion Nos. M-73553, CM-73589, M-73590


Synopsis


Defendant’s motion to dismiss claim for failure to state total sum claimed is denied since Court of Claims Act § 11 (b), as amended, does not require personal injury action to state total sum claimed.

Case Information

UID:
2007-041-048
Claimant(s):
MARY CACCIATORE and FRANK CACCIATORE
Claimant short name:
CACCIATORE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109721
Motion number(s):
M-73553, CM-73589, M-73590
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
DELL & LITTLE, ESQS.By: John S. McDonnell, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Todd A. Schall, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 29, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Defendant moves to dismiss this personal injury action in which claimants have already been awarded an interlocutory judgment as to defendant’s liability. The basis of the motion is that the Court lacks subject matter jurisdiction over the claim. In particular, defendant argues that the claim fails to set forth “the total sum claimed” as required by Court of Claims Act § 11 (b), thus depriving the Court of subject matter jurisdiction pursuant to the decision of the Court of Appeals in Kolnacki v State of New York (8 NY3d 277 [2007]). Claimants cross-move for an order to amend the claim to add the total sum claimed as damages and also move for permission to file and serve a late claim. The claim alleges that on July 6, 2004 claimant Mary Cacciatore was injured when she tripped and fell on a defective rug while visiting the New York State Department of Motor Vehicles offices in Westbury, New York. The claim was served and filed within ninety days of accrual as required by Court of Claims Act § 10 (3). The claim did not set forth a “total sum claimed” as damages.

The claim was bifurcated and the issue of defendant’s liability was tried on October 5, 2006. After trial, a decision was issued which found defendant to be 90% responsible for causing claimant’s injuries and damages. An interlocutory judgment based upon the liability decision was entered on November 8, 2006. That judgment has not been appealed and the time to take an appeal has passed. A damages trial has not yet been scheduled.

At the time the claim was served and filed, as well as at the time when the defendant’s motion to dismiss was made, Court of Claims Act § 11 (b) provided that:
“The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.”
In Kolnacki, the Court of Appeals held that the Court of Claims lacks jurisdiction over a claim which fails to state “the total sum claimed,” one of the requirements of section 11 (b). A claim against the State is permissible only as a result of the State’s waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki, 8 NY3d at 280). The Court noted that the requirements of section 11 (b) are “substantive conditions upon the State's waiver of sovereign immunity” (quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” (Kolnacki, 8 NY3d at 281).

The Kolnacki decision was issued on March 22, 2007 and defendant’s motion to dismiss the claim was made on June 7, 2007 and contained a return date of July 11, 2007. Prior to the return date, the Court was made aware that the Legislature had passed an amendment to Court of Claims Act § 11 (b) in apparent response to the Kolnacki decision and that the proposed amendment was awaiting gubernatorial action.

The Court conferenced the claim on June 29, 2007 and discussed with the parties’ attorneys the potential impact of the proposed amendment on the motion. At the close of the conference the Court adjourned the return date of the motion to September 20, 2007. At defendant’s request, the motion (together with claimants’ motion and cross-motion) was thereafter adjourned to October 17, 2007.

On August 15, 2007, the Governor signed Chapter 606 of the Laws of 2007 which amended Court of Claims Act § 11 (b) to except actions for “personal injury, medical, dental or podiatric malpractice or wrongful death” from the requirement that the claim state the total sum claimed.

Section 2 of Chapter 606 provides that:
“This act shall take effect immediately; provided, that notwithstanding any other provision of law, any claim which was pending on or after November 27, 2003 and which would have been viable if this act was effective at the time the claim was filed shall not be dismissed for failure to state the total dollar amount of the claim, and any claim which was dismissed on or after November 27, 2003 because this act was not yet effective is hereby revived and may be commenced within one year of the effective date of this act or within one year of the date of the final dismissal of the claim, whichever is later; provided, further that such claim shall be commenced no later than two years after the effective date of this act.”
Since the instant claim was “pending on or after November 27, 2003 and . . . would have been viable if this act [Chapter 606] was effective at the time the claim was filed,” there is no longer any legal authority to dismiss the claim for failing to state the total sum claimed. Accordingly, the defendant’s motion is denied.

The claimants’ motion and cross-motion are moot in view of the denial of defendant’s motion and in light of the amendment to Court of Claims Act § 11 (b).


October 29, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion, filed June 11, 2007;
  2. Affirmation of Todd A. Schall, dated June 7, 2007, and annexed exhibit.
  3. Affirmation in Opposition of John S. McDonnell, dated June 11, 2007 and annexed exhibits;
  4. Notice of Cross-Motion, dated June 14, 2007;
  5. Affirmation in Support of Cross-Motion of John S. McDonnell, dated June 14, 2007 and annexed exhibits;
  6. Claimants’ Notice of Motion, dated June 14, 2007;
  7. Affirmation in Support of Motion of John S. McDonnell, dated June 14, 2007 and annexed exhibits;
  8. Affirmation of Todd A. Schall, dated October 17, 2007